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Pt  E  F  O  RT 


OF    THE 


COMMITTEE  ON  COMMERCE 


ox    THE    JOrXT    llESOLrTIOX  (S.  4)  IX  RELATIOX  TO    THE    FREE 
XAVlGATiOX  OF  THE  MlSSISSIPri  RIVER. 


The  Committee  on  Commerce  to  whom  were  referred  the  joint 
resolution  in  relation  to  the  free  navigation  of  the  Mississippi  river, 
respectfully  submit  the  following  report : 

The  rules  of  international  law  governing  the  rights  of  the  parties, 
in  relation  to  the  navigation  of  the  Mississippi  river,  rising  as  it  does, 
in  the  United  States  and  llowing  through  the  Confederate  States,  and 
hnally  emptying  into  the  Gulf  of  ^Mexico,  are  too  clearly  defined  and 
laid  down  to  admit  of  controversy  or  doubt. 

Wheaton,  in  his  Elements  of  International  LaAV,  page  25?,  says: 
"  Things  of  which  the  use  is  inexhaustible,  such  as  the  sea  and  run- 
ning water,  cannot  be  so  appropriated  as  to  exclude  others  from  using 
those  elements  in  any  manner,  Avhich  does  not  occasion  loss  or  incon- 
venience to  the  proprietor.  This  is  what  is  called  an  iniioccnt  use. 
Thus  we  have  seen  that  the  jurisdiction  possessed  by  one  nation,  over 
sounds,  straits,  and  other  arms  of  the  sea,  leading  through  its  own 
territory  to  that  of  another,  or  to  other  seas  common  to  all  nations, 
does  not  exclude  others  from  the  right  of  innocent  passage  throrigh 
these  communications.  The  same  principle  is  applicable  to  rivers 
llowing  from  one  State  through  the  territory  of  another  into  the  aca, 
or  into  the  territory  of  a  thiyd  State.  The  right  of  navigating,  for 
commercial  j)urposes,  a  river  which  ilows  through  the  territories  of 
dilTerent  States  is  common  to  all  the  nations  inhabiting  the  different 
parts  of  its  banks ;  but  this  right  of  innocent  passage  being  what  the 
best  writers  call  an  imperfect  right,  its  exercise  is  necessarily  modi- 
fied by  the  safety  and  convenience  of  the  State  affected  by  it,  and  can 


only  be  efiectually  secured  by  mutual  convention  regulating  the  mode 
of  its  exercise. 

**  It  seems  that  this  right  draws  after  it  the  incidental  right  of 
using  all  the  means  necessary  to  the  secure  enjoyment  oi  the  princi- 
pal right  itself.  Thus,  the  Roman  law  which  considered  navigable 
rivers  as  public  or  common  property,  declared  that  the  right  to  the 
use  of  the  shores  was  incident  to  that  of  the  water ;  and  that  the 
right  to  navigate  a  river  involved  the  right  to  moor  vessels  to  its 
banks  to  lade  and  unlade  cargoes,  &c.  The  public  jurists  apply  this 
principle  of  the  Roman  law  to  the  same  case  between  nations,  and  in- 
fer the  right  to  use  the  adjacent  .land  for  these  purposes,  as  means 
necessary  to  the  attainment  of  the  end  for  which  the  free  navi^ration 
of  the  water  is  permitted. 

^'-  The  incidental  right,  like  the  principal  right  itself,  is  imperfect 
in  its  nature,  and  the  mutual  convenience  of  both  parties  must  be 
consulted  in  its  exercise." 

These  rules  have  received  the  assent  of  all  civilized  nations,  and  in 
all  conflicts  v;hich  have  prevailed  l^etween  States,  in  possession  of  dif- 
ferent parts  of  a  navigable  river,  in  regard  to  the  right  of  navigating 
the  same,  they  have  been  invoked,  and  have  controlled  the  final  deter- 
mination of  the  controversy ;  and  have  governed  treaty  stipulations 
so  as  to  secure  the  full  enjoyment  of  the  rights  recognized  by  them. 
The  controversies  between  European  States  growing  out  of  the  claims 
to  navigate  the  various  rivers  running  through  two  or  more  States, 
furnish  many  notable  examples.  But  without  enumerating  those  ex- 
amples, the  Mississippi  river  itself,  in  the  controversy  between  Spain 
and  the  United  States  has  furnished  an  illustration. 

When  Spain  had  become  the  sole  proprietor  of  both  banks  of  that 
river  from  its  mouth  to  a  considerable  distance  up,  and  of  the  western 
bank  to  its  source,  she  set  up  the  claim  to  the  exclusive  right  of  naviga- 
tion from  the  southern  boundary  of  the  United  States  to  the  mouth  of 
the  river.  The  United  States  holding  the  eastern  bank  of  the  river,  and 
all  the  tributaries  flowing  into  it  from  that  side,  north  of  the  Spanish 
boundary,  resisted  the  claim  set  up  by  Spain,  and  insisted  upon  the 
right  to  participate  in  the  navigation  of  the  river  from  its  source  to 
the  sea.  This  counter  claim  was  based  upon  treaty  stipulations,  as 
well  as  upon  the  law  of  nature  and  nations.  The  right  was  finally 
conceded  by  Spain  in  the  treaty  of  San  Lorenzo  el  Real,  and  the  navi- 
gation of  the  Avhole  river  from  its  source  to  the  sea  was  declared  free 
to  the  citizens  of  the  United  States. 

The  argument  in  favor  of  the  right  of  the  United  States  to  partici- 
pate with  Spain  in  the  free  navigation  of  the  Mississippi  river,  is  thus 
stated  by  Wheaton  in  his  Elements  of  International  Law,  page  258 : 
'*  The  right  was  rested  by  the  American  Government  on  the  senti- 
ment written  in  deep  characters,  on  tlie  heart  of  man,  that  the  ocean 
is  free  to  all  men,  and  its  rivers  to  all  their  inhabita.nt3.  This  natural 
right  was  found  to  be  universally  acknowledged  and  protected  in  all 
tracts  of  country  united  under  the  same  political  society,  by  laying 
the  navigable  rivers  open  to  all  the  inhabitants.  When  these  rivers 
enter   the   limits  of   another   society,  if  the    right  of  the  upper  in- 


liabitants  to  descend  the  stream  was  m  any  case  obstructed  it  was  an  ^  /» 
act  of  force  by*a  stronger  society  against  a  -weaker,  condemned  by  the 
judgment  of  mankind.  The  then  recent  case  of  the  attempt  of  the 
Em[)eror  Joseph  II.  to  open  the  navigation  of  the  Scheldt  from  Ant- 
Avcrp  to  the  sea  -was  considered  as  a  striking  proof  of  the  general  union 
of  sentiment  on  this  i)oint,  as  it  was  believed  that  Amsterdam  had 
scarcely  an  advocate  out  of  Ilollaud.  and  even  there  her  pretensions 
were  advocated  on  the  ground  of  treaties  and  not  of  natural  rif^lit. 

*  *  *  *  *  *  *  *  *  *  * 

"  If  the  appeal  was  to  the  law  of  nature  and  nations,  as  expressed 
by  writers  ou  the  subject,  it  was  agreed  by  them,  tiuit  even  if  the 
river,  where  it  passes  between  Florida  and  Louisiana,  were  the  exclu- 
sive right  of  Spain,  still  an  innocent  passage  along  it  was  a  natural 
'right  in  those  inhabiting  its  borbers  above.  It  would,  indeed,  be  what 
tho'se  writers  call  an  imperfect  right,  because  the  modification  of  its 
exercise  depends,  in  a  considerable  degree,  on  the  eonvenicncy  of  the 
nation  through  which  they  were  to  pass.  But  it  v.as  still  a  right,  as 
real  ni  any  other  right,  however  well  denned;  and  v\ere  it  to  be  re- 
fused, or  to  be  so  shackled  by  regulations  not  necessary  for  the  peace 
or  safety  of  the  inhabitants  as  to  render  its  use  impracticable  to  us, 
it  Avould  then  be  an  injury,  of  which  avc  would  be  entitled  to  demand 
redress.  The  right  of  the  upper  inhabitants  to  use  this  navigation 
was  the  counterpart  to  that  of  those  possessing  the  shores  below  and 
founded  in  the  same  natural  relations  with  the  soil  and  water.  And 
the  line  at  wliich  their  respective  rights  met  was  to  be  advanced  or 
withdrawn,  so  as  to  equalize  the  inconveniences  resulting  to  each 
party  from  the  exercise  of  the  right  by  the  other.  This  estimate  was 
to  be  fairly  made  with  a  mutual  disposition  to  make  equal  sacrifices, 
and  the  numbers  on  each  side  ought  to  have' their  due  weight  in  the 
estimate. 

*  *  <,<  *  *  #  *  *  *  :>•:  !>J 

"  It  was  a  principle  that  the  right  to  a  thing  gives  the  right  to  the 
means,  without  which  it  could  not  be  used.  That  is  to  say,  that  the 
means  follow  the  end.  Thus  a  right  to  navigate  a  river  dra\YS  to  it  a 
right  to  moor  vessels  to  its  shores,  to  land  on  them  in  case  of  distress 
or  for  other  necessary  purposes,  kc.  This  principle  was  founded  in 
natural  reason  was  evidenced  by  the  common  sense  of  mankind,  and 
declared  by  the  writers  before  quoted.  "' 

We  fully  concur  in  the  argument  of  the  United  States  with  Great 
Britain  in  support  of  their  claim  to  the  »avigation  of  the  St.  Law- 
rence, that  "  the  fact  of  subjecting  the  use  of  this  right  to  treaty  re- 
gulations, as  was  proposed  at  A^ienna  to  be  done  in  respect  to  the  na- 
vigation of  European  rivers,  was  not  sufficient  to  prove  that  the  origin 
of  the  right  was  conventional  and  not  natural.  It  often  happened  to 
be  highly  inconvenient,  if  not  sometimes  indispensable,  to  avoid  con- 
troversies to  prescribe  rules  for  the  enjoy vucnt  of  a  natural  right. 
The  law  of  nature,  though  sufficiently  intelligible  in  its  great  out- 
lines and  general  purposes,  does  not  always  reach  every  minute  deiail 
which  is  called  for  by  the  complicated  wants  and  varieties  of  modern 
navigation  and  commerce.     Hence  the  right  of  navigating  the  ocean, 


itself,  in  many  instances,  principally  incident  to  a  State  of  war,  is 
subjected  by  innumerable  treaties  to  various  regulations.  These  re- 
gulations— the  transactions  of  Vienna  and  other  analogous  stipula- 
tions— should  be  regarded  only  as  the  spontaneous  homage  of  man. 
to  the  parnmoiuit  l.awgiver  of  tbe  Universe,  by  delivering  His  great 
vrorks  from  the  artificial  shackles  and  selfish  contrivances  to  whicli 
they  have  been  arbitrarily  and  unjustly  sulijocted.  '' 

The  jKJople  of  the  Confederate  States,  -while  tlicy  arc  resolved  to 
resist  wrong  to  the  last  extremity,  and  at  the  risk-of  all  that  can 
make  life  desirable,  with  life  itselr",  are  anxiously  careful  to  avoid  de- 
manding anything  that  contravenes  those  principles  of  natural  justice 
engraved  upon  the  human  breast,  which  have  received  the  sanction 
of  all  civilized  nations,  and  been  adopted  as  rules  for  the  determina- 
tion of  these  I'ights,  and  the  regulation  of  their  intercourse  with 
each  other.  Notvfithstanding  the  feelings  of  vindictive  resentment 
which  may  resonably  be  supposed  to  have  been  engendered  by  a  long 
course  of  insult  and  injury,  followed  by  an  unprovoked,  cruel  and  re- 
lentless v.'ar,  waged  against  them  by  the  people  of  the  United  States 
for  their  subjugation  and  enslavement,  the  people  of  the  Confederate 
States  have  at  no  time,  assumed  a  position  or  declared  a  purpose 
which  Would  justify  the  conclusion,  or  even  the  presumption,  that  in 
their  future  intercourse  with  the  United  States,  or  any  State  thereof, 
they  Yt'ould,  in  any  particular,  depart  from  tlie  strict  rules  of  right 
and  justice,  or  the  acknowledged  principles  of  international  law.  On 
the  contrary,  we  may  cite  their  action  upon  the  subject-iuattter  under 
consideration,  as  evidence  of  tliis  truth. 

The  sovereign  conventions  of  the  States  of  Alabama,  r^ILssissipj)! 
and  Lousiana,  after  adopting  their  several  ordinances  of  secession, 
respectively,  passed  resolutions  declaring  the  free  navigation  of  the 
Mississippi  river,  and  the  Provisional  Congress,  representing  tlie 
sovereign  States,  by  whom  they  were  sent  to  oi-gaiuze  a  government 
for  this  Confederacy,  by  lav.-,  approved  on  the  2oth  February,  180  I, 
enacted  "that  the  peaceful  navigation  of  tlie  Mississippi  river,  is 
hereby  declared  free  to  the  citizens  of  any  of  the  States  upon  its  bor- 
ders, or  upon  the  borders  of  its  navigable  tributaries.  " 

We  have  thus  taken  the  pains  to  shovr  that  whatever  pretexts  may 
be  alleged  by  the  people  of  the  United  Siates,  as  a  justification  or  ex- 
cuse for  the  unjust  war  they  arc  v>-aging  against  us,  the  denial,  on  our 
part,  of  their  right  to  the  free  navigation  of  the  Mississippi  river,  is 
uot  justly  one  of  them. 

But,  were  the  principles  of  international  law  applicable  to  the  case, 
doiibtful  or  obscure,  self-interest,  the  controller  of  the  actions  of 
men  and  of  nations,  would  nevertheless  prompt  tlio  jx-ople  of  the 
Confederate  States  to  concede  the  right  of  free  navigation  of  the 
Mississippi  to  the  States  on  its  ufjjicr  waters  and  tributaries.  The 
States  of  Ohio,  Indiana,  Illinois,  Wisconsin,  Iowa  and  Minnesota,  have 
a  territory  of  over  three  hundred  tliousand  square  miles,  inhabiteil  by 
ten  millions  of  people;  tlie  lands  are  excedingly,  productive  in  bread- 
stuffs,  live  stock,  etc.  While  the  Mississippi  river  is  the  natural  out- 
let to  the  sea  for  all  the  products  of  those    States,  the  States  of  the 


Confederacy  on  lliat  river,  with  a  diverse  soil  and  ciimaio,  tuid  a  poj»- 
ulation  employed  in  tiie  production  and  frrowth  of  tlie  great  staples, 
cotton  and  sugar,  afford  the  natural  market  for  the  products  of  the 
States  enumerated.  Ecforc  it  -was  interrupted,  to  the  detriment  of 
l)oth  sections,  l)y  the  uinur.ural  war  now  ])eing  waged  against  us,  the 
inutuality  <if  interest  and  dependence  between  those  two  sections 
had  generatc'd  a  commerce  more  extensive  than  that  of  the  United 
States  witli  the  balance  of  tlie  Avorld.  The  Mississippi,  with  all  its 
tributaries,  -was  pregnant  v,  ith  life  and  commercial  activity.  A'essels 
to  the  value  of  njillions,  employing  thousands  of  persons  in  their 
navigation,  were  engaged  in  the  transportation  of  the  products  of  the 
two  sections,  to  the  mutual  advantage  and  prosperity  of  the  people  of 
each. 

"When  peace  shall  roturn,  except  by  sulijugation  ;  when  the  States 
of  this  Confederacy  sliail  be  depopulated  and  the  land  made  a  desert- 
waste  ;  ■when  peace  shall  return  as  it  only  will,  with  the  inde- 
pendence of  these  Confederate  States  acknowledged  regardless  of 
the  exasperated  and  vindictive  feeling  produced  by  the  war,  com- 
merce, the  great  pacificator  of  nations,  will  .be  restored  between 
tlie  sections  of  the  ^Mississippi  valley.  The  same  diversity  of 
soil,  climate,  pursuit  and  production  will  continue  to  e.xist  between 
them;  begetting  the  same  mutual  dependence,  and  the  same  muturd 
interchange  of  commodities  Avill  again  be  resumed,  renewing'  commer- 
cial life  and  activity  upon  the  bosom  of  tlie  great  father  of  waters. 
This  mutual  interest  will  demand  that  the  navigation  of  the 
Mississippi  and  tributaries,  shall  1;(3  free  to  the  people  of  the  States 
on  their  banks,  regardless  of  the  rules  of  natural  or  international 
law. 

A  denial  of  the  principles  above  set  forth,  always  produces  con- 
troversies between  States  mutually  interested  in  the  navigation  of  a 
river  llowing  through  their  territories.  Controversy  has  always 
ceased,  and  peace  has  resulted  upon  their  acknowledgment.  Since 
the  question  growing  out  of  the  navigation  of  the  great  rivers  of 
F]uropc,  as  well  as  of  the  St.  Lawrence,  have  been  settled  upon  their 
basis,  no  controversies  have  arisen  between  the  States  interested.  The 
same  rules  applied  to  the  Mississippi  river,  will,  it  is  confidently  be- 
lieved, result  in  the  same  manner,  and  operate  as  a  bor.d  of  peace, 
and  to  the  mutual  advantage  of  the  States,  and  people  interested  in 
the  commerce  and  navigation  of  that  river. 

The  committee,  therefore,  report  the  accompanying  preamble  and 
resolution  as  a  substitute  for  that  referred  to  them. 


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